Recent Decisions of Interest

Recently two court decisions came to the attention of the Julie Group. Both demonstrate an enlightened approach toward ruling on digital porn cases.

The first, from Pennsylvania, is linked from a site called out-law.com run by an international law firm that we are not in any way affiliated with. The link entitled, Pennsylvania court says viewing child porn 'not illegal' goes on to clarify... "A US court has ruled that viewing child pornography on a website without deliberately saving it to a computer is not a crime. The judge said that the state penal code was ambiguous, so he must rule in favour of the defendant."

Anthony Diodoro, a 26-year-old from Delaware County, Pennsylvania admitted knowingly viewing 370 child-porn images online. He also admitted that he had intentionally visited the websites for the purpose of viewing child porn.

State law says that a person must have "knowing possession" of child pornography in order for it to be a crime. A panel of three judges in the Pennsylvania Superior Court concluded that Diodoro could not be convicted of knowingly possessing the images because there was no evidence that Diodoro knew that his computer was storing the images in its internet cache file.

"Because this is a penal statute with an ambiguous term when it comes to computer technology, it must be construed strictly and in favour of the defendant," wrote Judge Richard Klein.

"A defendant must have fair notice that his conduct is criminal," wrote Klein. "Because of the ambiguity, sufficient notice was not provided here. For this reason, we are constrained to reverse [a previous decision] and leave it to the Legislature to clarify the language if it intends to make the mere 'viewing' of child pornography a crime."

The article further discusses this decision.

The second case is detailed in Law.com. The entry called, Appeals Panel 'Reluctantly' Tosses Child Porn Case by Alyson M. Palmer, Fulton County Daily Report discusses a case in which "Judges of the Georgia Court of Appeals last week said they must "reluctantly" issue an opinion that may make it more difficult for the state to prosecute people who look at child pornography." It goes on to give us some details.

A three-judge panel on June 21 reversed the conviction of a North Georgia man on 106 counts of sexual exploitation of children because, the judges found, prosecutors didn't prove that the man knew he had pornographic images stored in his computer hard drive.

In what it said was an issue of first impression in Georgia, the panel of Judge M. Yvette Miller, Chief Judge Anne Elizabeth Barnes and Presiding Judge J.D. Smith narrowly construed what it means to "knowingly" possess child pornography under the state's sexual exploitation law. It's not enough, wrote Miller for the panel, to prove a defendant has pornographic images in the inaccessible cache files of his computer.

The district attorney whose office prosecuted the case, Herbert E. Franklin Jr. of Walker County, said the ruling will make his job harder.

"With the computer savvy folks out there ... it's going to limit our ability to prosecute, I would think," he said.

But the lawyer who won the appeal, Daniel J. Ripper, of Luther-Anderson in Chattanooga, Tenn., said the opinion just gives prosecutors a roadmap for handling child pornography cases. "This is a case that says, 'Here are the facts that you need,'" said Ripper, a member of the State Bar of Georgia who said about half of his work is in Georgia.

In fact, the Julie Group is finding a disturbing number of nationwide prosecutions that are based on pornographic images stored on a person's computer. The unlikely suspects are teachers, police, teens, and others who find themselves fighting for their lives and, in some cases, bankrupting their resources to prove that they were unaware of the computer activity.

Courts are wise to require clarity in the law where it may be ambiguous. Imprecise criminal statutes can lead to conviction by opinion rather than conviction under the law and can ensnare the innocent as well as the guilty. Innocent people are routinely subjected to automations whose sole purpose is to control content on that person's machine with benign (blind?) disregard for the consequences. The authorities too often assume the automations are invited or actively engaged or are unaware of the phenomenon altogether. Instead of tracing the pornography to its source, it is raced to its destinations - often unsolicited destinations.

And laws that make no distinction between motive to possess such material and mere coincidental possession, entrap people who happen to use the internet. Everybody and anybody accused then becomes a target of the state to prove their immoral fitness to fit the crime.

Judges, courts, and juries who demand and honor the concept of innocent until proven guilty beyond a reasonable doubt are not promoting child pornography, violence, or immoral behaviors. They simply assert that innocent citizens are not criminals for co-incidental and the unsolicited, automated behaviors of computers in their charge. This is often referred to as justice.

- krasicki/js